Bellows v. Ericson

• Decision Date: 02 March 1951
• Docket Number: No. 35483,35483
• Citation: 46 N.W.2d 654,233 Minn. 320
• Parties: , 73 A.L.R.2d 843 BELLOWS v. ERICSON.
• Court: Minnesota Supreme Court

Page 654

46 N.W.2d 654

233 Minn. 320, 73 A.L.R.2d 843

BELLOWS v. ERICSON.

No. 35483.

Supreme Court of Minnesota.

March 2, 1951.

Syllabus by the Court

1. To justify the issuance of a writ of prohibition, it must appear: (1) That the court, officer, or person against whom it issues is about to exercise judicial or quasi-judicial power; (2) that the exercise of such power by such court, officer, or person is unauthorized by law; and (3) that it will result in injury for which there is no other adequate remedy at law.

2. Order of district court requiring defendant to return certain property to plaintiff or, in lieu thereof, to post bond construed to be an alternative temporary mandatory injunction and appealable under M.S.A. § 605.09(2). Where defendant, during pendency of an equitable action, wrongfully, by self-help, gained possession of property which was the subject of the action, in violation of plaintiff's rights therein, and where it was shown that otherwise a judgment for plaintiff in the main action would be ineffectual because of defendant's insolvency, district court had jurisdiction under § 585.02 to Grant an alternative temporary mandatory injunction to restore the Status quo ante.

3. District court did not have jurisdiction to Issue temporary mandatory injunction where plaintiff failed to give bond as required by § 585.04. Unless otherwise especially provided by law, a temporary injunction issued without bond is a nullity and unenforceable. Such requirement is mandatory and jurisdictional, and district court has no discretion in the matter, except to fix amount of bond above $250.

4. Prohibition is not a writ of right, but, in the absence of another legal remedy which is reasonably efficient and adequate, issues in the discretion of the court to prevent an inferior tribunal from proceeding in a matter in which it is exceeding its legitimate power and authority.

Joseph L. Bard and Fred Albert, Minneapolis, for relator.

Van Valkenburg, Blaisdell & Moss, Minneapolis, for respondent.

CHRISTIANSON, Justice.

Petition for a writ of prohibition to restrain the district court of Hennepin county from enforcing an order issued by that court in an equitable action brought by respondent, as plaintiff, against relator, as defendant, to cancel and rescind a lease and conditional sales contract on the ground of fraud and misrepresentation. For convenience, we shall hereinafter refer to respondent and relator as plaintiff and defendant respectively.

The original action arises out of the sale of a Minneapolis restaurant. It was commenced on March 13, 1950, by placing the summons and complaint in the hands of the Hennepin county sheriff for service on defendant. ¹ Personal service thereof was made by the sheriff on March 21, 1950. Defendant answered denying plaintiff's allegations of fraud and misrepresentation. In addition to the other relief sought, plaintiff seeks by her complaint to recover $1,800 from defendant by way of restitution, and claims a possessory lien upon the personal property covered by the conditional sales contract as security therefor. She also asks that the lien be foreclosed.

The order in question was entered by the district court on May 12, 1950, after a hearing held pursuant to plaintiff's notice of motion duly served on defendant's attorney. No appearance was made by or on behalf of defendant at the hearing. The district court's order reads in part as follows:

'It is ordered

'That defendant forthwith and within ten (10) days of service of a copy of this order upon him,

'(a) deliver to plaintiff the premises located at 1723 Chicago Avenue, Minneapolis, Minnesota, commonly known as Frankie's Cafe, together with the personal property described in the conditional sales contract between the parties hereto dated March 1, 1950, a copy of which is attached to the complaint on file herein.

'Or in lieu thereof,

'(b) execute, post and deliver to plaintiff a penal bond in the sum of Two Thousand and No/100 ($2000.00) Dollars, conditioned to pay to plaintiff such recovery, including interests and costs, and such attorneys fees as may be allowed, as may hereafter be adjudged due to plaintiff in the above entitled action.'

The order was received by the sheriff on May 15, 1950, for service on defendant, and personal service thereof was made on defendant the following day.

Plaintiff's motion was based upon her complaint, her affidavit in support of the motion, and all the files and records in the action. In her affidavit she stated that on March 10, 1950, before the summons and complaint in the action had been issued, she caused her attorneys to write a special delivery letter to defendant wherein the latter was informed that plaintiff had rescinded the sale of the restaurant property on the grounds of fraud and misrepresentation and demanded return of the purchase money she had paid thereon; that defendant received this letter on the same date but made no reply thereto; that because of this fact plaintiff closed the restaurant on March 13, 1950, and instructed her attorneys to institute suit; that the summons and complaint in said action were prepared on March 13, 1950, and were placed in the hands of the sheriff for service on defendant the same day; that subsequently on March 15, 1950, defendant, without her knowledge or consent, wrongfully broke into said leased premises and took possession thereof and the personal property covered by said conditional sales contract; and that since that date defendant has operated said restaurant business, refusing to surrender possession of the same to plaintiff. Plaintiff further stated on information and belief that defendant was insolvent, and in her affidavit she has itemized a number of defendant's outstanding obligations. She also stated that on April 10, 1950, defendant resold the restaurant and personal property therein contained to persons unknown to her, retained all the proceeds of such sale for himself, and unlawfully dispossessed her from said leased premises; that by reason thereof her rights and security in said property were endangered; and that she had no adequate remedy other than an order of the court requiring defendant to return possession of the property to her or, in lieu thereof, to post a $2,000 bond as sought by her notice of motion.

After the order in question had been issued, defendant moved the court to vacate and set aside said order. Hearing was held on his motion on May 24, 1950, and the court on November 30, 1950, entered its order denying the same. Defendant's counsel stated in an affidavit filed in support of said motion that the personal property in question had been transferred by his client to third parties and that defendant was unable to return said personal property to plaintiff or to post bond in lieu thereof as ordered by the district court. Nothing in the return before us, which includes the district court's original file, indicates that defendant has ever denied by affidavit or otherwise any of the facts appearing in plaintiff's affidavit. Furthermore, defendant's answer to the complaint has never been filed for record and is not included in the return to this court.

On December 13, 1950, defendant obtained an alternative writ of prohibition from this court restraining the district court and plaintiff from enforcing the order of May 12, 1950, until the further order of this court. Defendant contends that the district court does not have jurisdiction to grant such an order; that the order is not authorized by law; that it is not an appealable order; and that therefore the writ of prohibition heretofore issued by this court should be made absolute. He does not dispute the general jurisdiction of the district court, but maintains that the court exceeded its legitimate power and authority in the issuance of said order.

Plaintiff, on the other hand, contends that the order was a proper exercise of the district court's jurisdiction and was justified for the purpose of preserving the Status quo ante pending determination of the main action; that prohibition does not lie because the order in question was essentially an order granting a preliminary mandatory injunction and a provisional remedy; that the order in question, as well as the subsequent order refusing to vacate or dissolve the same, were both appealable under § 605.09(2); that the propriety of the court's action in issuing said order cannot be reviewed in these proceedings; that the remedy by appeal was adequate; and that the writ of prohibition should be dissolved.

1. Before a writ of prohibition may issue out of this court, three essentials must be shown to exist: (1) The court, officer, or person against whom it is issued must be about to exercise judicial or quasi-judicial power; (2) the exercise of such power by such court, officer, or person must be unauthorized by law; and (3) the exercise of such power will result in injury for which there is no other adequate remedy at law. ²

A writ of prohibition may not be used to correct errors or reverse illegal proceedings, but is used to prevent or restrain the usurpation by inferior tribunals or by judicial officers of powers which they do not have and to compel them to observe the limits of their jurisdiction. ³ A writ of prohibition does not lie where appeal affords an adequate remedy. ⁴

Accordingly, we are not concerned with the propriety of the district court's action except in the jurisdictional sense. Total want of jurisdiction as distinguished from an unjustifiable or erroneous exercise thereof is the sole question here.

2. We agree with plaintiff that the order in question was essentially an alternative temporary mandatory injunction and that both it and the subsequent order refusing to vacate or dissolve the same were appealable under § 605.09(2).

As stated in 3 Dunnell, Dig. § 4467: 'A writ of injunction may be defined as a judicial process, operating in personam, and requiring...